MIA v State Information Technology Agency (Pty) Ltd (D312/2012) [2015] ZALCD 20; 2015 (6) SA 250 (LC); [2015] 7 BLLR 694 (LC); (2015) 36 ILJ 1905 (LC) (26 March 2015)

MIA v State Information Technology Agency (Pty) Ltd (D312/2012) [2015] ZALCD 20; 2015 (6) SA 250 (LC); [2015] 7 BLLR 694 (LC); (2015) 36 ILJ 1905 (LC) (26 March 2015)

The court found that the respondent's application of its maternity leave policy discriminated unfairly against the applicant, a commissioning parent in a civil union who became a parent through surrogacy. The policy's exclusion of non-biological mothers and commissioning parents failed to recognise the rights established by the Civil Union Act and the Children's Act, and did not serve the best interests of the child. The court held that the respondent must amend its application of the policy to recognise the status of civil union partners and commissioning parents, and ordered payment of two months' salary to the applicant for unpaid leave. The claim for damages was dismissed due to...

Citation
[2015] ZALCD 20
Parties
Applicant: M I A; Respondent: State Information Technology Agency (Pty) Ltd
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
26 March 2015
Case Number
D312/2012
Procedural Posture
Review Application / Judgment
Outcome
Application granted in part; respondent's policy declared discriminatory; payment of two months' salary and costs awarded; damages claim dismissed.
Judges
Gush
Legal Topics
Unfair Discrimination, Maternity Leave, Surrogacy Agreements, Civil Union Rights, Employment Equity, Damages
Labour Law Family and Children Civil Procedure Unfair Discrimination Maternity Leave Surrogacy Agreements Civil Union Rights Employment Equity +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

M I A

Applicant

State Information Technology Agency (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the respondent's refusal to grant paid maternity leave to the applicant, a commissioning parent under a surrogacy agreement, constitutes unfair discrimination.
  2. 2 Whether the respondent's maternity leave policy unlawfully excludes commissioning parents and civil union partners from entitlement to paid maternity leave.
  3. 3 Whether the applicant is entitled to damages and payment for unpaid leave taken to care for his child.

Ratio Decidendi

The court found that the respondent's application of its maternity leave policy discriminated unfairly against the applicant, a commissioning parent in a civil union who became a parent through surrogacy. The policy's exclusion of non-biological mothers and commissioning parents failed to recognise the rights established by the Civil Union Act and the Children's Act, and did not serve the best interests of the child. The court held that the respondent must amend its application of the policy to recognise the status of civil union partners and commissioning parents, and ordered payment of two months' salary to the applicant for unpaid leave. The claim for damages was dismissed due to...

Court Disposition

Application granted in part; respondent's policy declared discriminatory; payment of two months' salary and costs awarded; damages claim dismissed.

Orders

  • The respondent's application of its maternity leave policy by refusing the applicant paid maternity leave is declared to constitute unfair discrimination.
  • The respondent is directed that in applying its policy regarding maternity leave it shall recognise the status of parties to a Civil Union and not discriminate against the rights of commissioning parents who have entered into a surrogacy agreement.